Burgess v Malley & Co

IN THE COURT OF APPEAL OF NEW ZEALAND

CA285/2015
[2015] NZCA 383

BETWEEN	GARY OWEN BURGESS Applicant
AND	MALLEY & CO Respondent

Counsel:

Applicant in person
J Eckford for Respondent

Judgment:

(On the papers)

20 August 2015 at 3.00 pm

JUDGMENT OF WHITE J

(Review of Registrar’s Decision)

AThe application to review the Registrar’s decision refusing to dispense with security for costs is dismissed.
BThe applicant is to pay the sum of $5,880 by way of security for costs within 20 working days of the date of this judgment.

____________________________________________________________________

REASONS

The respondent, Malley & Co, is suing the applicant, Mr Burgess, in the High Court in Christchurch for the payment of professional fees. Mr Burgess has counterclaimed against Malley & Co for losses that exceed the fees. Malley & Co filed a statement of defence to the counterclaim.
Applications by Mr Burgess to strike out Malley & Co’s statement of defence or, alternatively, for further and better particulars were dismissed by Dunningham J.[1] Mr Burgess filed an appeal to this Court against that decision on 22 May 2015.
[1]Malley & Co v Burgess [2015] NZHC 841.
On 3 June 2015 the Registrar fixed security for costs for the appeal at $5,880 payable by Mr Burgess within 20 working days of the filing of the notice of appeal (19 June 2015).
On 23 June 2015 Mr Burgess filed an application for review of the Registrar’s security for costs decision on the grounds that he was impecunious, there was an arguable appeal which a solvent litigant would pursue and a miscarriage of justice would arise if he were denied the ability to have the appeal heard.
The application was opposed by Malley & Co.
On 13 July 2015 the Registrar declined the application, which she treated as one to dispense with, or reduce, security for costs under r 35(6)(b) and (c) of the Court of Appeal (Civil) Rules 2005, on the ground that she had no jurisdiction to deal with the application because it was filed out of time, namely two working days after 19 June 2015.[2]
[2]Orlov v National Standards Committee No 1 [2014] NZCA 182.
The Registrar also indicated for completeness that she would in any event have refused the application on the grounds that:
(a)Mr Burgess had not provided details of his financial situation sufficient to determine whether he was impecunious.
(b)Impecuniosity alone did not warrant dispensation from the requirement to pay security for costs.
(c)Having considered the judgment of Dunningham J and the decision of the Supreme Court in Reekie v Attorney-General,[3] the Registrar was not satisfied that a reasonable and solvent litigant would pursue the appeal.
[3]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737.
On 27 July 2015 Mr Burgess filed an unsigned application for a review of the Registrar’s decision, together with comprehensive submissions also unsigned, and an affidavit.
The application is made on the following grounds:
(a)Breach of natural justice by the Registrar.
(b)Breach of the “rules of the Court”.
(c)The Registrar misdirected herself in law, misappraised the facts, acted contrary to principle, considered irrelevant matters, failed to consider relevant matters, and “generally acted contrary to principle and binding authority of the Supreme Court”.
(d)The Registrar incorrectly recorded the application for a Registrar’s review of security for costs as being filed on the 23 June, when the application was emailed to the Registry at “19.40 on 18 July 2015 [sic]”.
The submissions are made under the following headings: “The Law on Security for Costs”, “Previous Payment of Security”, “The Law on Particulars” and “Why a Solvent Litigant would Prosecute the Appeal”.
The affidavit provides evidence of Mr Burgess’s financial position. It does not provide evidence relating to the filing of the original application for dispensation in June 2015.
The application for review is opposed by Malley & Co.
I accept the Registrar seems to have incorrectly recorded the date on which Mr Burgess’s application to dispense with security for costs was filed in this Court. An application may be made informally.[4] In this case, the application was received by the Registry email address at 7.40 pm on 18 June 2015, and therefore is deemed to have been filed the next day at 9 am.[5] The application was therefore filed within time and the Registrar had jurisdiction.
[4]Court of Appeal (Civil) Rules 2005, r 35(7)(b); Orlov v National Standards Committee (No 1), above n 2, at [7].
[5]Court of Appeal (Civil) Rules 2005, r 10(6).
For the following reasons, however, I dismiss the application for review of the Registrar’s decision:
(a)The affidavit evidence does not establish current impecuniosity as required by Reekie v Attorney-General.[6] There is reference to gross annual earnings of $28,179.70, as assessed by ACC on 31 January this year, and an IRD summary showing taxable earnings of $28,610.31, with tax paid of $4,092.98, for the period 1 April 2014 to 31 April 2015 and other information relating to his assets and liabilities, but no independent verification of Mr Burgess’s current position. He has therefore not established that the Registrar erred.[7]
(b)A reasonable and solvent litigant would not wish to pursue the appeal against Dunningham J’s interlocutory decision dismissing Mr Burgess’s applications to strike out the Malley & Co statement of defence or for further particulars. It is clear from the High Court decision that the applications were without merit.[8]
(c)As there is no issue of general or public importance raised by Mr Burgess’s appeal against Dunningham J’s decision, no miscarriage of justice arises from requiring Mr Burgess to give security for costs.

[6]Reekie v Attorney-General, above n 3, at [35].

[7]Burgess v Beaven [2015] NZCA 373 at [4]–[5].

[8]Malley & Co v Burgess, above n 1, at [31]–[46].

Accordingly:
(a)The application to review the Registrar’s decision refusing to dispense with security for costs is dismissed.
(b)Mr Burgess is to pay the sum of $5,880 by way of security for costs within 20 working days of the date of this judgment.

Solicitors:
Parker Cowan, Queenstown for Respondent

The Court of Appeal of New Zealand considered an application by Gary Owen Burgess, who sought to review a Registrar’s decision that refused to dispense with security for costs. The respondent, Malley & Co, had filed a lawsuit in the High Court in Christchurch against Mr Burgess for professional fees, to which Mr Burgess had filed a counterclaim. The High Court judge dismissed Mr Burgess' applications to strike out the statement of defence or for further particulars, leading to an appeal by Mr Burgess. The Registrar set security for costs at $5,880, which Mr Burgess sought to challenge. The Registrar declined the application on the basis that it was out of time and, even if timely, would have been refused on other grounds. Mr Burgess then filed an unsigned application for review of the Registrar’s decision, which the Court subsequently considered.

The primary legal issue before the Court was whether the Registrar correctly declined Mr Burgess' application to review the refusal to dispense with security for costs. This involved examining whether the Registrar had jurisdiction to consider the application, whether Mr Burgess was impecunious, whether a solvent litigant would pursue the appeal, and whether a miscarriage of justice would occur if the appeal were not heard. The Court also needed to determine if the Registrar had misapplied the law, misdirected herself in law, misappraised the facts, or acted contrary to principle.

The Court determined that the Registrar had jurisdiction to consider the application as it was deemed filed within time. However, it dismissed the application for review on the basis that Mr Burgess had not provided sufficient evidence of his current impecuniosity. The Court found that while Mr Burgess' affidavit provided some financial information, it did not establish his current financial situation. Furthermore, the Court held that a reasonable and solvent litigant would not wish to pursue the appeal as the High Court judge's decision was correct and the applications were without merit. Consequently, the Court concluded that no miscarriage of justice would arise from requiring Mr Burgess to give security for costs, as there was no issue of general or public importance.

The Court dismissed the application to review the Registrar’s decision and ordered Mr Burgess to pay the sum of $5,880 by way of security for costs within 20 working days of the date of this judgment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established